GUEST OPINION: Supreme Court still out of touch with political reality

Friday

Apr 4, 2014 at 7:25 PMApr 4, 2014 at 7:29 PM

Pam Wilmot

When the Supreme Court issued its 5-4 McCutcheon vs. FEC decision this week, it demonstrated once again just how out of touch with political reality it is. The Court found that big money in politics and the influence and access to elected officials that it obtains is not sufficiently corrupting to trump the so-called First Amendment rights of the richest Americans. Only 664 individuals hit the $123,000 aggregate contribution limit that the Court found to be unconstitutional yesterday. Now this select group of ultra-wealthy individuals will be able to give millions of dollars directly to federal candidates and parties, and it’s we the people who will suffer.

Thanks to yesterday’s decision, a politician can now solicit a $3.6 million check for party committees and federal candidates from a single donor, consigning to background noise the hundreds of millions of Americans who can’t afford to give more than $5, $10 or $100 to the parties or candidates of their choice.

The $3.6 million figure is detailed in Justice Stephen Breyer’s excellent dissent and results from joint fundraising committees that could transfer money to favored candidates. The $123,000 aggregate cap that the Court struck down previously limited such schemes to evade the $2,600 limit on donations to a single candidate. Because of its role in protecting the efficacy of the individual limit, the Court specifically upheld the aggregate cap in previous cases. The individual limit survived the McCutcheon decision, but the Court gave hints that more campaign finance restrictions may fall in the future. And in fact, although not specifically overturned by McCutcheon, Massachusetts state aggregate limits will no longer be enforced.

The McCutcheon case turned on Chief Justice John Roberts Court’s hopelessly naïve definition of corruption which it found to exclude buying special access and influence. But as anyone involved in politics knows, whether in Washington, at statehouses, or at city halls, major donors routinely get unique access to the officials; their lobbyists are invited to help write and amend laws that impact their businesses; and they are rewarded with favorable policy and jobs. The system before the decision already helped produce the current political deadlock and inability to solve our nation’s critical problems. This ruling will make it even worse.

In addition to defying common sense, the Court’s conclusion that access and influence are not “corruption” defies the historical meaning of the term, according to Harvard Professor Lawrence Lessig. After scouring the founding documents of our country, Lessig concludes that corruption traditionally encompassed “improper dependence” and not just quid pro quo arrangements (think bribery), as the Court ruled.

Quid pro quo is an extremely narrow definition. It is also difficult to prove and we already have laws on the books to stop it. Restrictions on political giving protect us from the undue influence and the improper dependence big donations bring. The aggregate limit, along with individual limits and caps on soft money, are designed to put some roadblocks in front of wealthy special interests buying favorable public policy regardless of whether it is a result of influence or a specific deal. Either way, the public loses.

Combined with the 2010 Citizens United decision that opened the floodgates for unlimited money from independent political groups in elections, the McCutcheon decision is a devastating blow to our democracy. Some have argued that opening up more avenues for big money to flow directly to candidates and parties is a net positive. They are sadly mistaken. While it may divert some money from outside groups, more likely it will just increase the total sums available.

Moreover, while Super PAC expenditures are certainly corrupting (in my opinion, not the Court’s), there is at least some attenuation, however minor, caused by the requirement of independence. (Especially if it were properly enforced!) Under McCutcheon, candidates will now be dialing for million dollar contributions and that donor-recipient relationship will create even more improper dependence and corruption.

Passing a constitutional amendment is the only definitive way to change the ruling, and momentum for an amendment is building. Resolutions calling on Congress to pass a constitutional amendment to limit money in elections have been approved by voters, state legislatures and local governments in 16 states and hundreds of localities coast-to-coast. The Massachusetts Legislature passed a resolution in 2012 and 1 million Massachusetts voters approved a similar request on a 2012 advisory ballot question by an overwhelming 79 percent.

Enough is enough. Americans must stand up to restore our democracy of, by, and for the people, not just the wealthy special interests, by pressing for a constitutional amendment, small donor public financing, and better disclosure of political donors. These reforms are necessary to curb the activist and politically naïve Court and to bring our democracy back in line with the founding principle of one person one vote.